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Byte - DRM Dying Quietly (January 2008)

Francis Vierboom, Senior Consultant, Galexia

Related Galexia services and solutions Specialised Legal and Regulatory Consulting. Read more » Published Internet Law Bulletin, volume 10, number 9, 2008 Cite as Vierboom F, DRM dying quietly, Internet Law Bulletin, volume 10, number 9, 2008.

Recent moves by the recording industry have been interpreted by some as spelling the end of ‘digital rights management’ (DRM) technology.

DRM restricts usage and copying of digital copyright materials (such as music) using technical access control measures. Online music retailers, such as the Apple iTunes store, have typically been forced to use these protected formats by the recording industry, in an attempt to combat online piracy.

However, these protected formats create serious limitations for consumers. For example, protected music purchased on the iTunes store can only be played on Apple’s iTunes music player or iPod devices; it might not be possible to play it on mobile phones or in a car.

Apple’s huge current share on both sides of the song/player market has mitigated this portability problem for some time. But as a small number of online retailers and record labels demonstrated the popularity of unprotected formats over DRM formats, the major music labels began to come on board. EMI began selling unprotected tracks on the iTunes store in early 2007.

Since then, all four major record labels have begun licensing online retailer Amazon to sell unprotected versions of their tracks. Sony BMG became the last one to do so in January 2008.

Sony, Universal and Warner are still yet to allow unprotected tracks on the iTunes store; their support for the Amazon store is seen as a means of reducing Apple’s power in the sector. Nevertheless, some industry commentators see the end of DRM technologies in 2008.[1]

The recording industry may be retreating on the technical front, but around the world the legal front is still very active:

• In Atlantic v Howell in a District Court in Arizona, the Electronic Frontiers Foundation (EFF) has intervened on behalf of a private citizen appealing a file-sharing judgment. The judge at first instance had ruled that the act of placing copyrighted files in a ‘Shared Folder’ location constituted an infringement, and that no evidence of actual downloading is necessary. The EFF brief claims that such an interpretation of ‘publication’ or ‘distribution’ has already been rejected in other cases.[2]
• In Atlantic v Serrano in a California District Court, a judge ruled against a defendant’s motion to dismiss a recording industry lawsuit on the basis that the plaintiff’s search of the computer constituted trespass. The court said that trespass to chattels does not apply to electronic communications that ‘neither damage a recipient’s computer nor impair its functioning’.[3]
• Britain and France are looking to co-operate on ISP-level monitoring of copyright infringement. In the UK Lord Triesman, Minster for Intellectual Property, has threatened ISPs with mandatory monitoring legislation if they do not reach a separate agreement with the music and film industries by mid-2008.[4]
• In Sweden, Karl Sigfrid MP has published an open letter signed by twelve other MPs seeking legalisation of file-sharing.[5] Meanwhile, Swedish prosecutors are preparing to charge the administrators of popular Swedish file-sharing hub The Pirate Bay with copyright offences following a raid in May 2006.[6]

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[1] For example - Sony Drives Another Nail in the D.R.M. Coffin, NY Times Bits Blog, 10 Jan 2008, <http://bits.blogs.nytimes.com/2008/01/10/sony-drives-another-nail-in-the-drm-coffin/>
DRM will Die in 2008, British Music Service Predicts, PC World, 14 Jan 2008, <http://www.pcworld.com/article/id,141333-c,copyright/article.html>;
DRM is Dead; Long Live DRM, Wired News, 14 Jan 2008, <http://blog.wired.com/27bstroke6/2008/01/drm-is-dead-lon.html>.

[2] Electronic Frontiers Foundation, ‘EFF Files Brief in Atlantic v. Howell Resisting RIAA's ‘Attempted Distribution’ Theory, 13 Jan 2008, <http://www.eff.org/deeplinks/2008/01/eff-files-brief-atlantic-v-howell-resisting-riaas-attempted-distribution-theory>.

[3] A link to the judgment is available at <http://recordingindustryvspeople.blogspot.com/2008/01/los-angeles-judge-upholds-riaa.html>.

[4] Government piles file-sharing pressure on UK ISPs, out-law.com, 10 Jan 2008, <http://www.out-law.com/page-8790>.

[5] Swedish MPs demand legalisation of file sharing, P2Pnet, 11 Jan 2008, <http://www.p2pnet.net/story/14616>.

[6] Sweden prepares Pirate Bay prosecutions, PC Pro, 14 Jan 2008, <http://www.theregister.co.uk/2007/12/27/pirate_bay_traffic_boost/>

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